CNN BURDEN OF PROOF

Will Postpartum Depression Factor Into Yates Case?

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. (BEGIN VIDEO CLIP)

JOE OWMBY, PROSECUTOR: I've been here 15 years. I have not seen the cases that others have seen. This is the most horrendous thing that I have ever seen.

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RUSSELL YATES, FATHER OF FIVE SLAIN CHILDREN: She obviously wasn't herself. And I think that will come out, you know, that she's -- everyone that knows her, knows she loves the kids and she's a kind, gentle person. And what you see here and what you saw yesterday, you know, is not her.

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ROGER COSSACK, HOST: Today on BURDEN OF PROOF: It is a homicide that shocks the nation; a Houston woman admits to killing her five children and is given a court-appointed attorney. Can postpartum depression play a role in her defense?

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Houston police have a videotaped confession from Andrea Yates, "The Houston Chronicle" reports. In the interview, she allegedly describes the last moments of her children's lives and how she drowned them one by one. 36-six-year-old Andrea Pia Yates has been charged with capital murder in the deaths of her five children.

This morning, she appeared briefly before a Harris County judge and was appointed legal counsel. And then her arraignment was delayed so she could consult with her attorney. According to prosecutors, no decision has been made yet whether to seek the death penalty in this case.

And joining us today from New York is Dr. Eliot Sorel, a psychiatrist and president-elect of the District of Colombia Medical Society. In Houston, criminal defense attorney Christopher Tritico. Also in Houston, former Harris County prosecutor, Rusty Hardin (ph). In Indianapolis, Jennifer Auger, an attorney who argued postpartum depression is the basis for an insanity plea.

And from outside the courthouse annex in Houston are Harris County prosecutors Joe Owmby and Kaylynn Williford.

And also in Houston, CNN Chicago bureau chief and correspondent, Jeff Flock.

Jeff, I want to go right to you and give you -- give us a brief summary of what happened today in this horrible tragedy in the courtroom.

JEFF FLOCK, CNN CHICAGO BUREAU CHIEF: Yes, two headlines today, Roger, one, in the courtroom today, as you reported she does not have an attorney. Her husband said yesterday that they were trying to get an attorney. Apparently that did not happen so she was appointed a public defender today and of course, "The Houston Chronicle" account that you referred to.

And the most chilling part of that is that in that videotape statement she allegedly tells the story of how -- when she was in the process of drowning her 6-month-old daughter, her 7-year-old son came in and saw it and tried to get away. And she apparently said that she dragged him back in and drowned him in the tub as well. So those are the headlines from Houston today -- Roger.

COSSACK: Jeff, I know that, apparently, no decision has been made by prosecutors as of yet as to whether or not -- as to what kind of penalty they will seek. Do you know when they will make that decision and what the status of that decision is?

FLOCK: Yes, I talked to Joe Owmby about that earlier. He said that he would make his recommendation to the elected county prosecutor, here in Harris County, Chuck Rosenthal, within 30 days. I asked him if his gut told him that this was the kind of case that the death penalty was meant for. He said that at this point, he couldn't say. But he did say that he's prosecuted 12 capital murder cases before.

And as you know, just because you're charged with capital murder does not mean that they will seek the death penalty for you. But he's prosecuted 12 of them and he said, "This is the most horrific, horrendous case I have been associated with."

COSSACK: Jeff, yesterday, we -- many people had the opportunity to see Ms. Yates' husband discuss -- do we know what his status is today and what he is he doing?

FLOCK: He didn't appear in court today. We understand that her family, her mom and brothers, had been in touch with an attorney yesterday. But they have disconnected, apparently, their telephone and their whereabouts are unknown at this point.

So as you know, the appointment of a public defender doesn't necessarily mean that that's the person that's going to go forward with this. So they could come still come in with their own person. And in fact, we talked to one prominent defense attorney here today in Houston who said, "Well, I don't really want to talk to you about the case because I have some sense that if I get involved in this down the road I don't want to be on the record." So who knows how that will shake out.

COSSACK: And Jeff, what is the next -- the status of the next proceedings in this case?

FLOCK: As you reported, the arraignment was, in some sense, put off because of the fact that she didn't have an attorney. So we understand that Bob Scott, who is a member of the public defender's office here and had been appointed her attorney, met with her -- did have an opportunity to meet with her.

The building across the street from where we are right now, where you can't see, is where she's being held. No word yet on when her next appearance will be. But what they tried to do today, apparently, they will do no earlier than Monday.

COSSACK: All right, joining us now also from Texas is Chris Tritico.

Chris, what can we expect in terms of further proceedings in this case?

CHRISTOPHER TRITICO, CRIMINAL DEFENSE ATTORNEY: Well, I don't know when she'll have her arraignment. That was not an unusual proceeding today, since she hadn't had a chance to meet with a lawyer, to delay any further proceedings, to give her a chance to talk to him. You'll probably see a formal entry of a plea of not guilty some time early next week. And then it'll take the normal course of any case in Texas. That'll be reset several times before we go to trial.

COSSACK: Chris, what are -- what do the prosecutors take into consideration in deciding whether or not a death penalty would be sought in this kind of case?

TRITICO: Well, in any case that involves what could be a capital murder like this one, they look at the surrounding facts that they know when they go in to talk to the district attorney about it, the history of the person, what are the particular facts that caused this capital murder to take place and decisions. Those are the type of things they take in and make a decision with, in this case, Chuck Rosenthal, in deciding whether or not to seek the death penalty.

COSSACK: You know, Texas has this -- at least, you know, it appears to be a state that -- where there are a lot of death penalty cases, at least in terms of a sentence. Is this the kind of case that one would expect a death penalty case?

TRITICO: I don't know enough about the facts right now and the unfolding story about her mental health situation as to whether or not that will, in the district attorney's mind, mitigate a sentence of death.

With that said though, in Harris County where I live and practice, we have quite a few capital cases and a lot of death sentences. So I won't be real surprised if they seek the death penalty in this case.

COSSACK: All right, let's take a break.

Many new mothers suffer from postpartum depression. But can it cause a mother to kill her children? We'll discuss that when we come back.

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A measure that would make New York the first state in the nation to ban the use of cell phones while driving was approved by the state Senate Thursday. If approved by the assembly and signed by Governor Pataki, the law would take effect November 1 and beginning in December violators could be fined up to $100.

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YATES: She went through postpartum depression with our fourth child. And it was very serious then. And she had attempted suicide then. And they, you know, gave her medication and she really -- it took a while but she just snapped out of it. She was like herself again all of a sudden, you know and that was a couple of years ago, you know. And she was fine for -- from that time up until a few months after she had our fifth child.

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COSSACK: This morning in a Harris County courtroom, an arraignment for Andrea Yates was delayed so she could consult with her court-appointed attorney. Yates has been charged with murder in the killing of her five children.

Joining me now is Joe Owmby and Kaylynn Williford, two of the prosecutors who will be handling this case and are assigned to this case.

Joe, let me first start with you. I know that you haven't decided yet what penalty the State of Texas should seek in this case. But could you tell our viewers -- what kind of considerations do you look in deciding what the penalty should be?

OWMBY: Well, we look at the circumstances of the offender, the danger they present to the community, the circumstances of the offense. Basically, that -- our -- those are the two issues encompassed by capital murder special issues.

COSSACK: Kaylynn, when will you be deciding about the sentence in this case or -- excuse me, about what the penalty the State of Texas should seek in this case? Will there be meetings in the future and when do you think this decision will be made?

KAYLYNN WILLLIFORD, HARRIS COUNTY PROSECUTOR: I won't be the one that'll make the decision about this case. Ultimately, the district attorney, Chuck Rosenthal will make a decision whether or not the State of Texas will seek the death penalty or not.

COSSACK: Kaylynn...

WILLIFORD: It will be a decision that I...

COSSACK: I'm sorry, go ahead.

WILLIFORD: It will be a decision that I, Joe Owmby and the trial bureau chief will discuss based on the evidence. And then we'll discuss everything with Chuck Rosenthal.

COSSACK: Kaylynn, can you tell our viewers what the state of the investigation is now on behalf of the -- your office? And what is your office doing now?

WILLIFORD: The investigation is just beginning as far as the district attorney's part. The homicide officers have been investigating the case. And we're in the process of receiving information from them so we can go through all the evidence and determine exactly what we have.

COSSACK: Joe, when you get the evidence, what exactly will you be looking for in this case? What kind of evidence are you seeking to find?

OWMBY: Well, we will be evaluating this case like we evaluate any other case. Any case we have, the thought is always in the back of our mind, preparing for trial. So we'll be doing that now.

I cannot describe for you what we'll be looking for. We'll just be evaluating the evidence.

COSSACK: Are you -- is there anything in particular -- I mean this is such a horrible case but it seems like, in a sense, that you know, you have a defendant here who is not -- who has done a horrible criminal act but has no --apparently no criminal history. What kind of role will that play in your decision-making?

OWMBY: As I said, one of the factors that's involved is the circumstances of the offender, whether they present a danger to society. The fact that a person has no criminal record obviously is a factor that will be weighed in there.

COSSACK: All right, Kaylynn, will you be having -- will the district attorney's office be having its own experts investigate Mrs. Yates in this case?

WILLIFORD: At this point, it's too early to tell. We're making speculation about exactly what's going to happen. Potentially, we will be using experts.

COSSACK: And Kaylynn, can you us when the next time you will be in court or your office will be in court? And what you expect to happen at that time? OWMBY: July 24.

WILLIFORD: July 24 is our next court date setting. At that time, we'll be meeting with the attorney that represents Miss Yates. And basically -- hopefully we will have more information at that time exactly about what we have here.

COSSACK: All right, our thanks to Kaylynn Williford and Joe Owmby.

And now, joining us, let's talk to Dr. Eliot Sorel.

Dr. Sorel, it has been brought up that this is a case in which this woman was suffering from a great deal of depression and it is been described as postpartum depression. First, of all, could you tell us what exactly that is?

ELIOT SOREL, PSYCHIATRIST: Postpartum is a depression -- it's a depression that occurs in a significant number of women following the birth of a child. Of course, in this case, we know that that's inferred. Whether that's, in fact, the diagnosis or not, we don't know.

Now, the issues that are being considered -- can a postpartum depression cause such a terrible tragedy with multiple repercussions to the family, the community and the nation, really.

Depression alone is unlikely to have caused this kind of a tragedy. But if it combined with psychosis, when one cannot tell what is right from what is wrong, that may play -- indeed, a factor. The other is, of course, that we do not know and the legal people have alluded to it, the need to gather a thorough history -- absolutely right, both medical, psychological and social.

One of the issues that would need to be considered here, whether in fact this poor lady may have had herself a past history of abuse herself that may further complicate and add to this mix.

COSSACK: Dr. Sorel, is there a -- is there some -- a physiological cause for postpartum depression? I have read that it sometimes is caused by the buildup of hormones that a pregnant woman is having and then after birth there is a depletion of those hormones that causes an actual physiological response. Is that the cause of postpartum depression?

SOREL: I think there are -- there's really a cluster of factors. You mentioned one of them. They definitely -- there are, in fact, biological factors that contribute to the postpartum depression. The other is, of course, the stress of the delivery and responsibilities of taking care; in this case I believe four or five children and perhaps other factors that we do not know -- other social factors.

So indeed, yes, biological factors, psychological and social factors converge at that time in a woman's life. And the need for care is great because maybe 30 -- three out of 10 women or more may experience it. But very few experience a postpartum depression with psychosis. That number is maybe one or two in 1,000.

COSSACK: But -- and I guess that's the point I want to get to. What do we know about the difference between the usual onset of postpartum depression, which I understand is a rather common occurrence in new mothers to take it from that -- to take it to the psychotic spot, where -- the psychotic place where someone would act out in a way that we've seen -- or that we think Mrs. Yates acted out?

SOREL: That's an excellent question. I think one of the things that is a player -- could be at play here -- I do not know for sure -- that frequently women who have a postpartum depression with psychosis may, in fact, have had psychiatric history that anteceded the pregnancy. And the pregnancy and the prior history together may manifest themselves in a severe and dangerous psychiatric situation for themselves and for others.

COSSACK: Dr. Sorel, it's been reported at least that Mrs. Yates had, in the past -- over the last, I think -- in the last few years, attempted suicide and had been on medication for depression. Adding those factors into what we now -- happened, does that help you in establishing -- I know you can't give a diagnosis without examining -- but at least explain to us how she could get from postpartum depression to perhaps psychosis?

SOREL: Well, treatment, of course, plays a very important modifier role in the situation. And we do not know all the details.

For instance, let's assume that she needed to be on certain kind of medications. Taking those medications, in fact, could be life saving. Not taking them could be a danger to her and to others.

COSSACK: So in other words, if she had medication to take that could have helped her and whether -- it's been reported that after her suicide attempt that she was on medication. But if she failed to take her medication that would cause her to -- and you -- forget my terminology here -- is to slip back to perhaps her previous state?

SOREL: There are two reasons relating to the medication, one is pretty clear -- clear-cut, taking or not taking. She must take them. No. 2, whether she was treated -- the dose of the medication was adequate enough because these do get reviewed and periodically adjusted and thirdly, was she on one or more medications -- was she taking one, two or three? Or was she taking them all or just taking them sporadically?

COSSACK: OK, all right, let me take a break here. When we come back, let's talk more with Dr. Eliot Sorel and let's talk to -- also to the lawyers and find out what the future is in terms of the court case. Don't go away.

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Q: A federal judge granted Amy Engle and Bernie Bringhurst permission to be married where? A: In jail. The couple is awaiting trial on bank robbery charges and a judge ruled the pair has a constitutional right to be married. No date has been set.

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COSSACK: A Houston woman who allegedly confessed to killing her five children, was given a court-appointed attorney this morning. An arraignment in Harris County court was delayed so she could consult with her attorney.

Dr. Sorel, it's been reported that she was taking medicine called Haldol. Are you familiar with that medicine and what is it used for?

SOREL: Yes, it used for the treatment of psychosis.

COSSACK: All right, now, let me just -- and then see if I can get to the point here on this legal issue. The question would be, in front of this -- in the Texas court would be whether or not she knew right from wrong. Now, isn't it possible that Mrs. Yates could know right from wrong in the sense that -- know that it was wrong for her to kill her children but yet under a psychotic episode, go ahead and did it anyway?

SOREL: It seemed that did know because she called her husband -- that something was wrong -- she just did something wrong. She knew that. The question would be even more narrowly defined, perhaps -- did she know right from wrong at the time that she did it?

COSSACK: All right.

SOREL: That will be a question that will be asked. And second, related to the question you raised earlier about treatment, there are two related issues here regarding treatment. Medication is obviously -- may be more than one. Was she keeping her appointments? Was she allowed by her health care plan to get the optimal treatment required that would have combined medication with counseling or not? So these are all complexities that add to the case.

COSSACK: All right, now joining us is Jennifer Auger.

Jennifer, you have defended a client and you argued postpartum depression. Tell us, in a sense, how that defense is applied in a case? When you argue postpartum depression do you argue that your client did not know right from wrong? Or do you argue that your client knew right from wrong but there was just nothing that she could do to stop herself?

JENNIFER AUGER, CRIMINAL DEFENSE ATTORNEY: Well, in our case, we were arguing that Judy Kirby was suffering from hypothyroid induced psychosis, which is often times manifested in the postpartum period. But in Indiana, that's different than a straight out postpartum depression defense, which would have had to be introduced in the insanity defense. COSSACK: All right, and how did you introduce it in your defense?

AUGER: We introduced our defense just as -- to alleviate intentional conduct. In other words, because Judy Kirby was psychotic she did not understand what was happening. She was living in a world where people were chasing her, where people were out to get her children. And she was fleeing from these children as she drove the wrong way down the highway.

COSSACK: All right, joining me now, also -- again from Texas is Chris Tritico.

Chris, in terms of what the -- what presentation would be made in front of a Houston -- or in front of a Texas court, would -- the argument always for lawyers is right from wrong. How would this be presented in the defense of Mrs. Yates? Would you have to say that the postpartum depression -- or show or prove that the postpartum depression added to a point that she was unable to tell right from wrong?

TRITICO: In Texas, that is the law. And you -- if you have a defense of insanity, which is an affirmative defense, you have to prove that at the time of the offense you didn't know that what you were doing was wrong. And so if --whoever ends up representing her and employs the affirmative defense of insanity, they'll have to prove that.

The interesting thing is the Haldol that she had been prescribed for a psychotic episode -- that I didn't know about until this morning in the paper -- which raises really a new type of insanity thing.

Postpartum depression, I think, is a hard one to sell to a jury whether it's true or not. But a psychotic episode is certainly something that you could really talk to a jury about and tell them how you could end up in this position and -- in a psychotic episode and not realize that what you were doing was wrong.

COSSACK: So in other words, a psychotic episode, if a jury would believe it, would be the notion that you just had no ability to differentiate between right from wrong.

TRITICO: Right, God told me to drawn my children. And your brain is telling you to do that and you can't differentiate that.

COSSACK: All right, that's all the time we have for today. Thanks to our guests. Thank you for watching.